November 24, 2012
Dershowitz versus Gaza
Belen Fernandez close reads Alan Dershowitz, in Al Jazeera [via Doug Henwood]:
During the Israeli assault on Lebanon in the summer of 2006, a 34-day affair that resulted in 1,200 deaths - primarily civilian - in the targeted country, Dershowitz used his legal expertise to exonerate the Jewish state for its seemingly immoral behaviour.
In a July 2006 dispatch for the Los Angeles Times, Dershowitz offered a handy conceptual tool called the "continuum of civilianality" to explain why it was that so many purported "civilians" were perishing.
The answer, quite simply, was that some civilians just aren't that civilian-like.
Declaring the very term civilian to be "increasingly meaningless", Dershowitz posits a far more precise taxonomy according to which two-year-olds fall on the "more innocent" side of the continuum, while south Lebanese residents who remain in south Lebanon in defiance of Israeli orders to evacuate are "complicit".
Dershowitz's cautionary addendum - "Nor can women and children always be counted as civilians, as some organisations do" - is perhaps useful in explaining such events as the elimination in south Lebanon of 23 persons, most of them children, whose efforts to comply with evacuation orders were thwarted by the Israeli Apache helicopter that fired on their pickup truck at close range.
Posted by Robin Varghese at 12:52 PM | Permalink
Comments
With all due respect, it is quite astonishing to see a website such as 3QD, that spends much time and effort elucidating its criteria of civility for the comments section, to post an article consisting of immature ad hominem attacks against a widely respected legal scholar. Someone was recently chastised and banned from 3QD for a lowly little comment calling Chomsky a buffoon, and now we have a whole article POSTED IN THE MAIN FEED that calls professor Dershowitz a criminal.
Posted by: Max | Nov 24, 2012 1:26:37 PM
I agree. I really love this site, but between the censoring of comments and the obviously one sided articles, this site is becoming more of an anti-Israel gathering than a forum for discussion.
Posted by: Mike Starr | Nov 24, 2012 2:10:53 PM
Wrong lads. In most US media environments Israeli bullying gets a pass. Dershowitz is an ass. He has become a poor excuse for a human being.
Justifying brutality against civilians puts AD & Israel in some pretty nasty company including the Nazis. Jews have been on the receiving end of much brutality thru the centuries as the weak party. This history & suffering should inform their behavior now as they act from a position of strength.
Posted by: Sean O | Nov 24, 2012 3:39:56 PM
Dershowitz and the State of Israel are of course fair game, but the ridiculously sloppy reasoning (if it can be called reasoning) in Belen Fernandez's piece is way below the standards one expects to see in 3QD.
Posted by: Saul | Nov 24, 2012 4:04:59 PM
Dershowitz says: "There is a vast difference -- both moral and legal -- between a 2-year-old who is killed by an enemy rocket and a 30-year-old civilian who has allowed his house to be used to store Katyusha rockets."
Is this really controversial? Is this really snark-worthy?
The Israel hatred at this site has jumped the shark.
Posted by: Angling Saxon | Nov 24, 2012 5:05:41 PM
Yes, and regrettably the comments policy is selectively enforced. I have had a very tame comment of mine in another thread, one that I put thought and effort in, deleted w/o warning or explanation, while Sean O here is of course free to call people he disagrees w/ abusive names while contributing nothing of substance. Bravo 3qd!
Posted by: Max | Nov 24, 2012 5:34:53 PM
Attorneys are hired to represent clients, to put forth the best possible arguments to defend their clients. I don't object to Dershowitz defending Israel as his client. I do object to him defending Israel while pretending that he is simply an expert, a legal scholar, offering an unbiased and uncompensated opinion on a subject of great interest.
Why doesn't Dershowitz disclose if he has any economic relationship with Israel, any investments in Israel, receives any compensation or other benefits or business as a result of being essentially a lobbyist for Israel. The problem is his failure to disclose the true nature of that relationship.
If, for example, Dershowitz was on the payroll of Israel's government, was compensated for writing this silly excuses for Israel's slaughter, then we would understand his role: he's paid to do it, just like the people in the military are.
The real problem is that he pretends to be a great legal scholar instead of just being a paid spokesperson. I disagree with the comment that Dershowitz is highly respected, because if he was once, he no longer is, mostly because of his absurd and irrational defense of Israel and attacks on anyone who disagrees with Israel.
If any other professor at Harvard was a paid spokesperson for a policy or product that caused death -- such as a professor at the medical school advocting in favor of cigarettes -- I would think Harvard would require the professor to disclose that his statements were bought and paid for, that he is selling his name. That's the least they should do.
Posted by: NABNYC | Nov 24, 2012 7:39:35 PM
What I find cringeworthy are the apologia for Israeli military force in the comments here. Fifty years of boots on the throat and continuous land grabs give rise to no right of self defense? There is nothing temporary about this misdescribed occupation. It would seem that in the interest of humanizing the resistance, we simply ought to sell them weaponry that is longer range and more effectively targetable. Somehow I can anticipate that this would be unacceptable to Dershowitz. The central and enduring violence is the occupation itself.
Posted by: Erich | Nov 24, 2012 8:10:10 PM
there's a worthwhile distinction to be made between drive-by contentless denigration and invective backed by some argument (good or bad, provided only it's in good faith). it's i hope obvious to most that this article is of the latter and comments like 'this article is poorly reasoned' and 'Dershowitz is evil' are of the former category.
@Angling Saxon, that is not what Fernandez was arguing. he referenced in that section only civilians who remain in the field of battle, who Dershowitz argued in the linked article of July 2006 in the LA Times are to some extent complicit. this is i believe controversial.
Posted by: bjm | Nov 24, 2012 8:10:15 PM
Dershowitz is a horrible, horrible person, justifying the killing of civilians like that. calling him out for being the disgusting human he is is not Israel-hate.
Posted by: Klausi | Nov 25, 2012 4:02:14 AM
Let's read all the article and not a quote; it's akward to read a (clumsy and irrational) comment of Belen Fernandez without reading the original:
http://www.haaretz.com/opinion/israel-s-right-to-self-defense-against-hamas.premium-1.478627
Israel's right to self-defense against Hamas
As Hamas continues to target Israeli civilians in their homes, Israel continues to target terrorist leaders and other legitimate military targets. Hamas has now succeeded in killing a family of three in their home. Targeting civilians, such as that family, is a calculated Hamas policy designed to sow terror among the Israeli population. Hamas supporters celebrate the murder of Jewish civilians. Every rocket fired by Hamas from one of its own civilian areas at a non-military Israeli target is a double war crime that should be universally condemned by all reasonable people. Israel’s response—targeting only terrorists and Hamas military leaders – is completely lawful and legitimate. It constitutes an act of self-defense pursuant to Article 51 of the United Nations Charter and universally accepted principles of international law.
There is absolutely no comparison between the murderous war crimes being committed by Hamas and the lawful targeting of terrorists by the Israeli military. Yet the Egyptian government, now controlled by the Muslim Brotherhood, has condemned Israel while remaining relatively silent about Hamas. This should not be surprising, since Hamas is an offshoot of the Muslim Brotherhood.
Some in the media also insist on describing the recent events in Gaza as “a cycle of violence,” without distinguishing between the war crimes committed by Hamas and the lawful actions undertaken by Israel to protect its citizens against such war crimes. It would be as if the media described lawful police efforts to stop illegal drug-related murders as a “cycle of violence.” Yet J Street, an organization that persists in calling itself pro-Israel, insists on describing the situation in Gaza as a “spiral of violence."
What would Egypt do if Hamas or Islamic Jihad suddenly began to lob deadly shells in the direction of Cairo suburbs? What would any country do? President Obama was entirely correct in defending Israel’s right to protect its citizens from terrorist attacks and in condemning Hamas for initiating these attacks. He is also correct in calling for Israel to try its best to avoid unnecessary civilian casualties, as Israel has always done and continues to do. The targeted killing of Hamas military commander Ahmed al-Jabari is a case and point. He and a Hamas associate were killed in a pinpoint airstrike that apparently caused no collateral damage.
There are some who argue, quite absurdly, that all targeted assassination is unlawful, since it constitutes “extrajudicial killing.” But all military deaths are extrajudicial killings, as are deaths caused in the civilian context by individual acts of self-defense or by the police shooting a dangerous fleeing felon. In fact, only Israel among all the countries of the world has subjected its policy of targeted killing of terrorists to judicial review. The Israeli Supreme Court has set out careful and precise criteria for when targeted killing is appropriate and which people constitute appropriate targets under international law. Ahmed Jabari plainly fits within those criteria.
Israel’s response to the Hamas rockets must of course be proportional, but proportionality does not require that Israel wait until a large number of its civilians are actually killed or seriously injured. Israel’s response must be proportionate to the threat faced by its civilian population. Indeed, the goal of its actions must be to prevent even a single Israeli civilian death.
In addition to the Israel Supreme Court imposing constraints on its military, Israeli civilians and the Israeli media also serve as an important check. When, on occasion, Israeli military actions have caused a disproportionate number of civilian deaths, Israelis have become outraged at their military and demand a greater adherence to the principles of proportionality. This contrasts sharply with the population of Gaza, much of which applauds and celebrates every time an Israeli child is killed by a Hamas rocket. It is immoral in the extreme to compare Israel to Gaza or to compare the Israeli military to Hamas terrorists.
It would be better, of course, if a permanent ceasefire could be arranged under which Hamas would stop firing rockets at civilians and Israel would no longer need to target Hamas terrorists. Egypt could play a more positive role by trying to bring about a ceasefire instead of unilaterally condemning the victims of war crimes, as it has done.
But until Hamas stops terrorizing more than a million Israeli civilians, the Israeli military will have no choice other than to use its technological advantage to prevent and deter Hamas terrorism. It is the obligation of every sovereign state, first and foremost, to protect its civilian population from terrorist attacks. Israel’s decision to use targeted assassination against Hamas combatants is preferable to other military options, such as a massive ground attack that inevitably will cause more collateral damage.
But if Hamas’s rocket attacks persist, Israel may have little choice to invade the Gaza and take more extensive steps to protect its civilian population. It’s up to Hamas, which is entirely to blame for the current situation, as it was when Israel was forced to invade back in 2008. The international community and the media must begin to differentiate between war crimes committed by terrorists and legitimate acts of self-defense engaged in by a responsible military. Failing to emphasize that distinction encourages terrorism and erodes the moral basis of the important principle of just warfare.
Alan M. Dershowitz, the Felix Frankfurter Professor of Law at Harvard, is a practicing criminal and constitutional lawyer and the author, most recently, of The Trials of Zion.
Posted by: mirel | Nov 25, 2012 8:31:31 AM
Usually, I try to steer clear of political arguments.
It's clear that Israel itself has only a spurious historical claim to legitimacy.
3QD, however, has a history of a very one-sided view toward Israel. Whether or not you like it, the state of Israel exists. And it's surrounded by people who call for each and every Israeli to die. Not surprising, then, that they're a bit touchy about people who lob very approximately aimed rockets into the country they claim. And when those rockets are launched from crowded areas, where there is no delineation between civilian and military, where the military wear no distinguishing uniform, then it is clear that the enemy is militarising its civilians. When people proudly photograph their children, strapped into explosive vests, wearing headbands proclaiming them as future martyr, where a people hail as heroes those who strap themselves with explosives, and explode their bodies amidst Israeli civilians, they lose the right to outrage at Israeli retaliatory strikes killing civilians and childre in their own lands.
Hamas has long considered any and all Israelis to be legitimate targets.
And by the same logic, Israel may be considered within its rights to consider anyone within a militarised zone to be a valid target.
It's simple. Stop lobbing rockets, stop strapping bombs, and Israel is likely to stop as well.
If you poke a dog with a stick, it may bite you.
Posted by: soubriquet | Nov 25, 2012 10:19:52 AM
Dershowitz was, once upon a time, a respected legal scholar and civil libertarian. However, after 9/11 he, like Hitchens, lost his bearings: his attempts to justify torture by making a cursory nod to due process marked the end of his standing as a respected scholar. I'm not saying he is an ass, mind you; but it was the sort of argument an ass would make.
Posted by: giotto | Nov 25, 2012 12:56:34 PM
@Mirel
"There is absolutely no comparison between the murderous war crimes being committed by Hamas and the lawful [???] targeting of terrorists [and lots of civilians, I am sure you mean] by the Israeli military"
Yes, there is not. 3 dead Israelis, 140 dead Palestinians. The Israeli military is much worse (if you count the value of every life equally).
Posted by: Klausi | Nov 25, 2012 3:59:34 PM
Klausi, since when has the ethics of conflict been judged by comparative casualty counts? If a gang of 10 is shooting into your house, and one of the bullets kills 1 person inside, and they do no stop shooting until you climb on the roof and shoot 5 of them dead with a sniper rifle, is this 5-1 ratio somehow relevant to the moral evaluation of the conflict?
Posted by: Max | Nov 25, 2012 4:50:06 PM
Leaving aside the Israel/Gaza/Palestinian issues, I would like to second Giotto's comment: Dershowitz and his defense of the indefensible have destroyed any credibility that he ever had. As to Dershowitz acting like an ass, I think that this is an insult to either Donkeys or buttocks.
Posted by: Ian Kaplan | Nov 25, 2012 8:26:59 PM
To Klausi and the other militants that think that the answer of Israel was "unfair"- an explanation:
Israel had a low casualty rate in this war due to the following factors:
-Luck(or Gods/G-D/Jesus/Allah/Vishnu)
- a Real Estate enforced law that each new flat/house/building private or public is built with a shelter or a room shelter of concrete , with a bulletproof window protected by steel and a steel door. A family that received a direct rocket hit was unharmed, even their flat was destroyed together another two floors. Also to the people that didn't have a shelter received governmental aid.Also the shelter room that may be used as a regular room is not taxed and allowed to be built in a country with draconian laws of building. The cost of such shelter room cost us 15-30 thousands US$/family.
-the anti-rocket system Kipat Barzel with 85% rate of success and with a high price: 50-100 thousand US$ each antirocket fired; 50-70 millions US$ each battery of antirockets.
- the continuous and very successful Israeli Air Force attacks on the Hamas rocket teams conjugated with a very good intelligence on the ground that allowed after each attack to establish new targets from ammunition dumps to rocket experts.
The Palestinian casualties between INNOCENTS (40 civilians died and Israel regret their death)was high due to the following factors:
-Hamas used the civilians as human shields, lancing rockets from inhabited areas, sport areas,public buildings, less of 100 meters of mosques and schools.
-All the money donated by private people and European states was used to buy rockets and to pay wages; this money was never use to improve the quality of life or to protect the life of Peale living in Gaza, that have no shelters at all, not public and not private.
And now a personal question: when Gilad Shalit, a simple Jewish soldier, was kidnapped and his comrades killed on the Israeli soil by the same Jaabari (that was terminated in Gaza after more than 100 rockets was lanced against our towns and a military patrol was ambushed also on Israeli soil ) nobody protested. When Gilad Shait was exchanged, one simple soldiers, against one thousands terrorist nobody protested of the rate of exchange: one thousand Palestinians for ONE (1) Jew...Why now the rate of exchange seems unfair to some biased people?
Posted by: mirel | Nov 26, 2012 3:37:44 AM
Does anything good come out of the Middle East besides oil? People in the Middle East better hope the oil never runs out, because if it does, in two generations the entire region will be worse off than Africa. It will be forgotten completely and left to rot.
Posted by: Josef Stern | Nov 26, 2012 4:24:24 AM
@Mirel
"To Klausi and the other militants" in your eyes I am a militant because I lament civilian deaths? You are simply out of your mind.
And the "Hamas uses these civilians as human shields, so it's their fault that we kill them" argument is simply disgusting. Shame on you.
Multiple paragraphs of rambling posts don't replace a moral compass.
Posted by: Klausi | Nov 26, 2012 6:16:33 AM
A question worth pondering:
"Can any state in a constant state of war with its neighbors survive for long?"
While the Israelis hold the upper hand, militarily and economically up to now, even the most superficial reading of history indicates that it is only a matter of time before Israel as a state is destroyed, if things continue as they are now. The Arabs know that they only need to bide their time. I think many Israelis know this too.
The only thing that will save Israel in the long run is if they change course and find a way to make peace with their neighbors while they are able to negotiate from a position of power.
As a great admirer of the Jewish tradition of rational thought and wisdom, it pains me to see no creativity coming from Israel (from governmental levels and the Diaspora at least) to solving a crisis that has gone on for the better part of the last 100 years!
Posted by: Bill | Nov 26, 2012 6:39:44 AM
Bill. what for a state is a short time, for us, poor mortals, is long...
For the time being it is a lack of trust of the Israelis in the Palestinian's intentions that, if they will receive,land, they will keep the peace.As you see here in Gaza war example, Israel is able to bomb but NOT to take back the land if there is no peace. So probably in the next future there will be no peace accords neither a Palestinian state...IF it will be not major steps from the part of the Palestinians to rebuild this Trust.
If Israel will fall? possible, nothing is eternal and this is good question, Bill. I will quote for you:
"When I break the 56 civilizations down into phases (for example, Ancient Egypt has three phases), the total number of "distinct" civilizations is 74. The average length of time that a civilization lasts is 349.2 years. The median is 330 years.
The civilizations that lasted the longest seem to be the Aksumite Empire which lasted 1100 years and the Vedic Period of India which lasted 1000 years. The shortest period of time is the Third Dynasty of Ur at 50 years, the Qin Dynasty at 14 years, and the Kanva Dynasty at 45 years.
So, how did I do in my estimate? It seems that I was correct in saying that most civilizations do not last more than 500 years. In fact, if these 40 civilizations are representative of all civilizations, then it seems that civilizations usually don't last 400 years."
http://larryfreeman.hubpages.com/hub/How-long-do-empires-last
Ancient Israel and Judah lasted 270 years.
This Israel modern state? I don't know,100-200-300?but after the Holocaust and the 2000 years of persecutions we will not go gently into that good night...
Posted by: mirel | Nov 26, 2012 8:46:29 AM
Thank you for your thoughtful reply Mirel. Yes, what is short for states can be long for mere mortals! You could have mentioned the Venitian Republic as one of your examples. It carried on for the better part of 1000 years. They maintained their power mainly through the clever use of diplomacy (although they did have some spectacular military victories as well as defeats). On a European scale, they were not a large military power, but they used what they had in a very intelligent way. In they end, their state vanished with a whimper when Napoleon came...but in a relatively bloodless way before finally being incorporated into the fledgling Italian state in 1866.
I think your last post highlights the great problem for Israel. The Israelis and Palestinians cannot get beyond this ingrained sense of victimhood. Both sides have legitimate grievances and the Jews certainly have a terrible historical experience of persecution, but they both need to realize that it is within their power to stop this madness! The rockets and military assaults generate yet more victims that continually reinforce the victimhood narratives of both sides.
Only when Israelis and Palestinians get over the past injustices and allow each other to be full participants in deciding the destiny of their lives and little patches of land, will peace be achieved. How practically to do this is the big question. I hope somebody is thinking about seriously it. My fear is that the only thing people seem to be thinking about is how to best kill "the other." What a brutal existence for both sides...
Posted by: Bill | Nov 26, 2012 11:07:07 AM
(sorry for the spelling and typos..)
Venetian Republic...
I hope somebody is thinking seriously about it.
Posted by: Bill | Nov 26, 2012 11:10:17 AM
Venetian republic, La Serenissima, the "Most Serene Republics" had a long life and a false reputation as peaceful; many wars, colonies, domination and even the sacking of Constantinople had been her exploits. Othello, the black general, is fighting for Venice.
Dear Bill, when I think of Israel I think more of Rhodes and Malta standing against the Ottomans. The Muslim can't accept that another culture stands on their land, even that the history of the Middle East and of all the world is the history of conquest; the Barbarians that were knocking the Roman gates were chased from their lands by other nations. All land is conquered land; however the nations around Israel will not accept Israel and will keep artificially and forcefully this conflict over a land without water, mostly desert, with no gold, oil or precious metals. The historians in another 300 years will not understand this conflict.
Economic and industrial way? Not that Israelis didn't try to make work and business contacts with the Arab world or to create Erez Peace Park,an work industry zone, where American and Israeli money, Israeli know-how and Palestinian workforce had the possibility to create miracles. At our sadness the Palestinian workers assassinated their Israeli patrons and engineers; the zone is closed today. 5000 Palestinians lost their jobs; see a document from the period:
http://www.terrorism-info.org.il/data/pdf/PDF_simuchin_101_2.pdf
What have to be done? you ask...possible plans exist if TRUST will be built again; one of them is Geneva Accords:
ttp://www.geneva-accord.org/
End of conflict. End of all claims.
Mutual recognition of Israeli and Palestinian right to two separate states.
A final, agreed upon border.
A comprehensive solution to the refugee problem.
Large settlement blocks and most of the settlers are annexed to Israel, as part of a 1:1 land swap.
Recognition of the Jewish neighborhoods in Jerusalem as the Israeli capital and recognition of the Arab neighborhoods of Jerusalem as the Palestinian capital.
A demilitarized Palestinian state.
A comprehensive and complete Palestinian commitment to fighting terrorism and incitement.
An international verification group to oversee implementation.
....
However when I post this on Facebook groups, the Palestinians are not accepting (swap, demilitarized state are the first obstacles)and the Jews are not trusting at all any good intentions of the other parts, mostly those coming from Gaza.
Posted by: mirel | Nov 26, 2012 1:49:40 PM
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